BERHAMDEO PERSHAD Vs. TARA CHAND

JUDGEMENT

(1.) This appeal and appeal No,. 381, which are appeals from the same decree, have been heard practically together.

(2.) The circumstances under which the suit was brought are these : On the 21 May 1887, one Kalu Babu, the ancestor of the defendants, who are described in the cause title as the first party, executed a mortgage, by which he mortgaged Mouzah Chuck and certain other mouzahs in favour of the appellants. On the 9 September 1887 he executed another mortgage, by which he mortgaged Mouzah Chuck and other mouzahs in favour of the plaintiffs, undertaking to repay the money secured by the mortgage in the month of Kartic 1296, and on the 19 July 1889 he executed a second mortgage in favour of the appellants in respect of Mouzah Chuck and other mouzahs. " a 1890 the appellants filed a suit, No. 16 of 1890, to enforce their first mortgage, but, although they made the plaintiffs parties to that suit, no mention was made of their second mortgage of the 19 July 1889. On-the 8th October 1890 a decree was made for sale of the mortgaged properties and in due course Mouzah Chuck was sold, and after paying off the amount due upon the mortgage sued upon out of the sale-proceeds there remained a balance of Rs. 12,197-8-3 in deposit in the Court of the Subordinate Judge.

(3.) In a suit filed somewhat. later, No. 136 of 1890, to which the plaintiffs were not made parties, the appellants on the 14 January 1891 without notice to the plaintiffs obtained a decree upon their mortgage of the 19 July 1889, and in satisfaction of that decree they on the 22 April, 1892 withdrew the sum of Rs. 12,197-8-3. In the meantime the plaintiffs had Hone nothing to enforce their rights under their mortgage, but on the 17 November 1900 they filed the present suit, alleging inter alia that the sum of Rs. 12,197-8-3, the surplus sale- proceeds of the sale of Mouzah Chuck in law and equity stood in the place pro tanto of Mouzah Chuck and was, therefore, subject to their mortgage and insisting that the appellants were not entitled to withdraw the same in satisfaction of the decree of the 14 January 1891 and seeking to follow it in their hands. The appellants in their written statement alleged that the plaintiffs, having been parties to the suit in which Mouzah Chuck had been sold, had lost their lien by their own negligence in not having taken steps to have the money applied to the debt under their mortgage. They also submitted that the plaintiffs lien had been lost in consequence of their not having redeemed the earlier mortgage of the 21 May 1887 and they pleaded that the suit was barred by limitation as against them.